BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.704 OF 2012 AGAINST C.C.NO.1125 OF 2010 DISTRICT FORUM-I HYDERABAD
Between:
Central Bank of India
rep. by its Branch Manager
Having its office at 23, Siddhaveerappa
Chetty Street, Dharmapuri-701
Appellant/opposite party no.1
A N D
1. M/s SVG Granites Limited
Regd.Office at H.No.5-5-103/6
1st Floor, Meher Complex, Ranigunj
Secunderabad-003, rep. by Mr.K.Srinivas
S/o Mr.K.Pardhasaradhi, aged about 49 yrs
Occ: GM (Operations) R/o Flat NO.202,
Srirama Apartments, Balajinagar,
Mehdipatnam, Hyderabad-25
Respondent/complainant
- State Bank of Hyderabad
rep. by its Manager
Having Head Office at Gunfoundry
Hyerabad-001
Respondent/opposite party no.2
Counsel for the Appellant M/s K.Suryanarayana
Counsel for the Respondents M/s Md.Muneeruddin (R1)
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
&
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
MONDAY THE TWENTY FIRST DAY OF OCTOBER
TWO THOUSAND THIRTEEN
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The opposite party no.1-bank is the appellant. The first respondent filed complaint seeking direction to the appellant to pay an amount of `3,00,000/- covered under two cheqeus bearing nos.029442 and 029441 with @12% p.a. and an amount of `2,00,000/- towards damages and costs.
2. The facts of the case of the first respondent as seen from the complaint are that the first respondent is the account holder of the second respondent-bank with current account bearing number 62041778174 and it deposited two cheques bearing number 029442 for `2,00,000/- and another cheque bearing number 029441 for `1,00,000/- on 16.06.2009 and the second respondent bank had sent the two cheques for clearance to the appellant-bank. On enquiry about the status of the cheques made by the first respondent, the second respondent bank informed it on 12.03.2010 that the appellant informed it that the two cheques were returned unpaid and the second respondent informed the first respondent that the cheques were delivered to State Bank of India instead of State Bank of Hyderabad, at Hyderabad.
3. The first respondent submitted that the appellant and the second respondent failed to inform it about dishonour of the two cheques and the first respondent is unable to trace the drawer of the cheques. The first respondent got issued notice on 24.08.2010 demanding the appellant-bank to pay the amount covered under the two cheques.
4. The appellant-bank resisted the claim on the premise that the two cheques sent by the respondent no.2-bank were returned unpaid on 27.06.2010 and the appellant returned the cheques to the second respondent-bank on 29.06.2009 and the post office concerned by oversight registered the parcel as if addressed to State Bank of India, Gunfoundry Branch, Hyderabad. On enquiry made by the second respondent bank, the appellant informed it that the two cheques were bounced due to insufficient funds in the account of the drawer and it further informed the second respondent that the cheques were returned to the second respondent bank.
5. The appellant submitted that it had taken up the matter with the post office, Dharmapuri which informed it that they delivered by mistake the parcel containing two cheques to the District collector’s Office, Hyderabad on 03.07.2009 and the appellant had continuously contacted the postal authorities with a request to rectify their mistake. The appellant through letters dated 12.03.2010 and 19.08.2010 explained the position to the first respondent.
6. The second respondent submitted that the first respondent failed to get updated information from the second respondent and neglecting its obligation, the first respondent attributed negligence to the second respondent. The appellant intimated the second respondent that the cheques were dishonored and the second respondent had not received the cheques from the appellant. There is no deficiency in service on the part of the second respondent.
7. The General Manager (Operations) of the first respondent-company in support of its claim , filed his affidavit and the documents,ExA1 to A6. On behalf of the appellant, the Senior Manager of opposite party no.1 filed his affidavit and the documents, ExB1 to B14.
8. The District Forum allowed the complaint and awarded an amount of `3,00,000/- towards the amount covered under the two cheques and it had awarded interest @9% p.a. on the amounts and it had awarded an amount of `2,000/- towards costs. The District Forum observed that the appellant by its admission exonerated the postal department from the allegation of delivering the parcel on incorrect address.
9. The learned counsel for the appellant-bank and the respondent no.1-company has submitted written arguments.
10. The point for consideration are:
i) Whether there is deficiency in service on the part of the appellants?
ii) To what relief?
11. POINT No.1: The first respondent presented on 16.06.2009 cheque bearing number 029442 for an amount of Rs.2,00,000/- and cheque bearing number 029441 for an amount of Rs.1,00,000/- drawn on appellant-bank issued by one M/s V.G.Granite, for collection of the amount. The deposit of cheques and loss of cheques in transit to the drawee bank is not disputed.
12. The learned counsel for the appellant has contended that as on the date of presentation of the cheques or thereafter there were no sufficient funds in the account of the drawer and as such misplacing or loss of cheques in transit does not entitle the first respondent to claim amount covered under cheques or interest on the amount or any amount thereto as the first respondent has the option to proceed against the drawer of cheque for recovery of the amount covered under the lost cheque or he can proceed against the drawer of the cheque under Section 138 of the Negotiable Instruments Act as the appellant has not refused to issue certificate at any time to the first respondent.
9. The appellant-bank had specifically taken plea that the cheques were misplaced not due to any negligence on its part and that the cheques were lost due to negligence of the postal department. The respondent has not added the drawer of cheque or the postal department through which the cheque was sent to SBH, Hyderabad.
10. The learned counsel for the respondent has submitted that the respondent can maintain the complaint in view of the decision of the Hon’ble Supreme Court in ‘Karnataka Power Transmission Corporation Limited vs Ashok Iron Works Pvt Ltd., reported in (2009) INSC 252 and the respondent being a company and having availed the service of the respondent no.2-bank and the appellant, it can maintain the complaint. In view of the contention of the appellant that there was no fault on its part in the matter of loss of the cheque and even if there is any deficiency in service found on the part of the appellant-bank, the respondent no.1-company cannot claim the amount covered under the cheque from it except the amount for deficiency in service if any, this Commission is inclined to restrict the scope of appeal as to find whether there was any deficiency in service on the part of the appellant and if so, to what amount the respondent no.1 is entitled to.
11. The learned counsel for the appellant has contended that the appellant is not due any amount or it did not issue any cheque to the respondent no.1 or any amount covered under the cheque from the appellant-bank.
12. It is true, the appellant is not due any amount to the respondent and it is not the case of the respondent no.1 that the appellant bank obtained any amount as loan from it. The learned counsel for the appellant has placed reliance on the following decisions:
1. A.P.Bopanna vs Kodagu District Co-operative Central Bank in R.P.No. 5 of 2005 decided on 17.12.2008.
2. Mohammad Abdul Nayeem vs State Bank of Hyderabad and another in F.A.No 142 of 2013 decided by this Commission on 23.09.2013.
In Bopanna’s case(supra), the Hon’ble National Commission held that ratio laid in ’Citibank vs Geekay Agropack(P) Ltd and another’ (2008)CTJ 561 that the consumer forum would hold the complainant entitled to compensation for loss of cheque in transit and not for the amount covered under the cheque. It was held:
“Against a similar Order passed by this Commission, another Bank had carried the matter to the Supreme Court of India. The Supreme Court upheld the Order passed by this Commission. The same is reported as Citibank N.A. v. Geekay Agropack (P) Ltd. and another [2008 CTJ 561 (Supreme Court) (CP)]. In the said case, Supreme Court held as under: -
“9. This appeal filed by Geekay for not getting adequate compensation for the total amount of loss incurred by it is misconceived. For the recovery of total amount of loss, it is open for the appellant Geekay to file a civil suit before the appropriate Court which, we are informed has already been filed. The National Commission could have awarded compensation only for the deficiency of service only. The said compensation has been awarded by the National Commission. Therefore, there is no reason to interfere in the appeal filed by Geekay also. In the result, all these appeals are dismissed. No order as to costs insofar as proceedings before this Court are concerned.”
Mohammad Abdul Nayeem’s is a case where the demand draft was taken on incorrect name of beneficiary and the complainant issued instructions to the bank to stop payment of amount which the collection bank failed to take to the bank for the drawer of the cheque. On assurance of the Bank, the complainant paid the amount of `2,50,000/- through RTGS to the beneficiary. Thereafter, a duplicate demand draft was issued to the complainant and the drawee bank canceled it and paid the amount to the complainant. The District Forum awarded a sum of `10,000/-towards compensation which in the appeal was enhanced by this Commission to `20,000/-. No reason was assigned by this Commission for enhancement of the compensation (we are not party to the order) and it was held that the complainant was at liberty to proceed against the bank which had issued duplicate demand draft which was enhanced by the complainant.
13. The learned counsel for the appellant has placed reliance on the aforementioned decisions in support of his contention that the first respondent cannot under any circumstances claim amount covered under cheque and what all it can seek for is compensation on account of deficiency in service on the part of the appellant-bank.
14. The appellant-bank addressed letter dated 27.08.2009 to the post master, Head Post Office, Dharmapuri which goes to show that the appellant had sent VPP letter on 27.06.2009 addressed to the State Bank Of Hyderabad, Gunfoundry Branch, Hyderabad and the Postal Department delivered the cheques to State Bank Of India, Hyderabad and the appellant requested the Postal Department to retrieve the cheques from the State Bank Of India and return the cheques to it.
15. The appellant through letter dated 04.03.2010 addressed to the State Bank of Hyderabad, Gunfoundry, Hyderabad informing it about the mis-delivery of cheques to State Bank Of India and Requested the State Bank Of Hyderabad to arrange for replacement of cheques from its customer. In response to the letter of the appellant, the second respondent-bank advised the first respondent through letter dated 12.03.2010 to obtain cheques from the drawer of the cheques which were not delivered to the second respondent-bank. The letter reads as under:
“The above cheques presented by you for collection were sent to Central Bank of India Dharmapuri, Branch, Tamilnadu on 24.06.2009 vide our SC No.1258197 and 1258201 dt.23.06.2009. After our persistent follow up from 22.07.2009 it was informed by them that the cheques were returned unpaid by them. But the same were not received by us. On further enquiry with the Branch manager, it was informed that the same were delivered at SBI, Hyderabad.
We request you to obtain cheques for the similar amounts from your party in place of the originals, which were wrongly delivered at other place and they are not retrievable”.
16. The first-respondent company had kept quiet for a period of six months from the date of receipt of the letter dated 04.03.2010 from the appellant and it had then chosen to throw burden upon the appellant-bank on the premise that the appellant-bank had to provide it with the particulars of the lost cheques and it addressed letter on 14.08.2010 to the appellant seeking for particulars of the drawer of the cheques. The delay in addressing the letter would show volumes of negligence on the part of the first-respondent. Such attribute of the first respondent company would estop it from saying that it had lost opportunity to proceed against the drawer of the cheques under Section 138 of the Negotiable Instruments Act. And to proceed for recovery of the amount covered under the two cheques.
17. Immediately after receiving the letter dated14.08.2010, the appellant-bank through letter dated 19.08.2010 furnished the particulars of the drawer of the two cheques, viz., M/s V.G.Granites, Venkatanoor, Solakottai, Dhramapuri District. Thereafter, the appellant made correspondence through letters dated 6.01.2011 and 27.01.2011 which did not yield any positive result. The fact remains that the appellant had taken prompt steps to find out the place where the cheques were delivered by the Postal Department.
18. The first respondent had not taken any steps against the drawer of the cheque and particularly so when it was informed by the appellant-bank and the second respondent-bank that there was insufficient funds in the account of the drawer of the cheque and the amount in the account had not exceeded as such even if cheque is presented , it would not have been honoured.
19. Interestingly, the District Forum observed that the appellant in its letter dated 4.03.2010 addressed letter to the second respondent-bank informed the second respondent that the cheques in question were returned unpaid and the District Forum proceed to hold that the appellant admitted its fault that it had written the name of the addressee as ‘State Bank of India’. The learned counsel for the appellant has contended that the District Forum without considering the documents, ExB1 and B6 to B13, jumped to hastily conclusion that there was admission on the part of the appellant that it had written incorrect address on the envelope.
20. The correspondence made between the appellant and the postal department and that was made between the post offices in Dharmapuri and Hyderabad would establish that the postal department was at fault and not the appellant. The learned counsel for the appellant has contended that the respondent no.1 failed to implead the postal department. The District Forum exonerated the postal department on the premise that the appellant admitted its negligence and expressed regrets to the second respondent.
21. The learned counsel for the appellant has rightly contended that the District Forum misdirected itself in understanding of the issue and failed to appreciate the evidence on record. The letter dated 31.01.2011 issued by the postal department would dispel any mist as to the doubt whether the appellant wrote an incorrect address on the envelope containing the cheques. The postal department in the letter referred to the appellant’s query as
“It was reported by the sender of the article that they have sent Unpaid Returned Cheque No.029441 for Rs.1,00,000/- and 029442 for Rs.2,00,000/- in the VPIL 1760. As a court case is filed regarding this complaint, the content of the VPIL may please be collected from the wrong recipient and delivered to the addressee, State Bank of Hyderabad, Gun Foundry Branch, Hyderabad-1.”
22. Thus, the finding of the District Forum that the appellant was at fault and it is liable to pay the cheque amount to the first respondent-company is not maintainable. As contended by the learned counsel for the appellant-bank the appellant cannot be fastened with liability to pay the amount covered under the two cheques. In the light of the ratio laid in Bopana’s case, this Commission would modify the order of the District Forum by setting aside the relief for payment of the amount covered under the two cheques and the interest thereon. The first respondent is entiled to a sum of Rs.10,000/- towards compensation and Rs.2,000/- towards costs.
23. In the result, the appeal is allowed. The order of the District Forum is modified. The appellant-bank/opposite party is directed to pay an amount of `10,000/- towards compensation together with costs of `2,000/-. There shall be no spate order as to costs.
Sd/-
MEMBER
Sd/-
MEMBER
Dt.21.10.2013
కె.ఎం.కె.*
